STATES’ LAWSUIT AGAINST EXECUTIVE ACTION HAD FIRST HEARING YESTERDAY; WHAT HAPPENS NEXT?

Yesterday, the case filed by 25 states suing President Obama over executive action received its first hearing with federal judge Andrew Hanen. The defendant (the federal government) has requested until the end of January to file another brief, which means that Hanen’s ruling won’t come until at least February. There are several things that might happen in his ruling:

Standing — this is the first thing that the plaintiff states must establish. If they can’t demonstrate that they suffer a particular harm due to executive action (and they are claiming all sorts of harms), then they don’t have standing, and the case will be thrown out.

Injunction – the states have asked that the judge hand down preliminary injunction while the case is pending. This would block executive action while the case winds through the legal system. If the judge has ruled that the states have standing, Hanen can either 1) deny the motion for an injunction, thereby allowing executive action to begin being implemented, 2) grant an injunction, or 3) grant an injunction only in the 25 states that have sued.

Stay — if Hanen hands down an injunction, a higher court can issue a stay. That would freeze Judge Hanen’s decision granting the injunction and once more allow executive action to proceed while the case winds through the courts.

Below, with an informal quick-take and more details is David Leopold, an immigration attorney, legal consultant to America’s Voice and past president of the American Immigration Lawyers Association:

Does Hanen first need to rule on standing, or can he rule on standing and the injunction at the same time?

Think of standing as the question of whether or not the plaintiffs have shown they have suffered a harm that he can rule on. In other words, I could not sue because someone broke a contract with you. You would have to sue. I would have no standing.

So the judge first needs to agree there is standing, e.g. that the plaintiffs have articulated some harm to them over which he has the authority to rule. If, like the judge in the Arpaio case, he concludes there is no standing, he could dismiss on that basis alone. If he concludes there is standing he then (in the same opinion) will likely rule on the injunction. He could conceivably agree there is standing, but deny the injunction, so the two are not necessarily mutually dependent. Bottom line, the 25 states must show they have standing to sue. If no there is standing, there will be no injunction and the case fails. That would be the best result. According to many observers however, it’s more likely, given the judge’s background, that he’ll agree there is standing and will grant the injunction.

If Hanen issues an injunction would it affect DACA and Morton memos as well as executive action, or just executive action (i.e. DACA expansion, DAPA, new priorities enforcement memos, etc)?

First, this is a hypothetical question. Let’s remember, the immigration executive actions are solidly legal; they are based constitutional and statutory authority and are consistent with deportation reprieves implemented by presidents of both parties dating back to Eisenhower.

That said, this is a much more difficult question because it involves complicated jurisdictional questions. And I don’t believe scholars are of one view about the answer. The rules governing declaratory judgments give the court authority to declare the rights of parties. Whether or not a ruling declaring the president’s executive actions unlawful would immediately apply across the country is a matter of debate. What’s clear is that an adverse ruling declaring the immigration executive actions unconstitutional, if allowed to stand (which I believe is unlikely at best), would affect DAPA and DACA expansion nationally. It would not impact the Morton memos because those are agency policy directives which are not targeted by the suit, and their legality has not been challenged. Nor would it likely affect most of the immigration executive actions related to business immigration issues. I think an adverse ruling would also effect DACA because the complaint asks for a ruling on the “deferred action program.”

Would an adverse final decision (from SCOTUS) affect DACA and the Morton memos as well as executive action, or just executive action (i.e. DACA expansion, DAPA, new priorities enforcement memos, etc)? In the 25 states or nationwide?

Again, hypothetically, an adverse SCOTUS ruling would likely affect the well-settled tradition of prosecutorial discretion in general—and throw the entire immigration enforcement system into disarray because it could impact all exercises of deferred action, and, therefore all enforcement decisions. In other words, it wouldn’t be clear how much authority the president has to grant exercised prosecutorial discretion in immigration matters, including deferred action. It would be a royal mess.

But this is outcome his highly unlikely. As recently as its decision in Arizona vs U.S. SCOTUS reaffirmed that “a principal feature of the removal system is the broad discretion exercised by immigration officials.” Moreover, as stated, for decades presidents of both parties have granted deportation reprieves to large classes of undocumented immigrants. According to the Immigration Policy Center perhaps the most striking historical parallel to today’s immigration challenges is the “Family Fairness” policy which led President George H.W. Bush to offer a blanket deferral to as many as 1.5 million spouses and children of immigrants who were legalizing, provided they met certain criteria.

If Hanen issues an injunction and it’s stayed, will DHS be able to continue implementation of the program nationwide?

This is exactly what I predict will happen. And DHS will be able to continue implementation of DAPA and DACA nationwide. At some point some court is going to have to correctly apply the law. My hope is that it will be Judge Hanen who has sworn to uphold the law. But if not, my guess is that it will be the 5th circuit court of appeals—not because they like DAPA or DACA or Obama—but because as a federal appellate court they must ensure the integrity of the judicial system. The 25 states clearly lack standing to bring this suit and that’s exactly what I think the ultimate ruling will turn on.

How much time could pass between the issuing of a preliminary injunction and having it stayed by another court?

Going out on a limb here, but I believe it will be very short—a matter of hours, if that much. My guess is that in the event of an adverse ruling the government will immediately ask the judge to stay his own order granting the injunction pending appeal. He may or may not do that. If he doesn’t, the government will probably immediately appeal to the 5th circuit and request an emergency hearing. And if that doesn’t work, the government will likely ask SCOTUS to intervene.